Funson v. Salisbury
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Thomas C. Salisbury, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 29th day of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes.
Read the full summary
Appeal by the defendant, Thomas C. Salisbury, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 29th day of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover the possession of a mare known as “ May Queen,” a horse known as “ Richie,” a carriage and two sets of harness. The principal controversy was in regard to the ownership of the mare…
1Opinion of the Court
Herrick, J.:
I think the exclusion of the evidence offered was error.
The testimony offered was not independent affirmative evidence of a transaction between the defendant and the deceased for the purpose of establishing an affirmative defense, but was for the purpose of contradicting the testimony of the witness Leonard by showing that what he testified to, to wit, seeing a bill of sale signed by the defendant, could not be true.
It does not come within the spirit of section 829 of the Code of Civil Procedure, which was to prevent the survivor of an interview from giving a version of it that…
2Cases cited2 opinions
- Pinney v. . OrthNew York Court of Appeals · 1882
- Holcomb v. . CampbellNew York Court of Appeals · 1889
3Cited by2 opinions
- State v. MurphyWisconsin Supreme Court · 1906
- Wald v. Weilhamer, New York County Courts1913